Henry VIII Rules, Not OK

Public service broadcasting in the UK is the result of some 90 years of deliberate and carefully considered policy. In the Communications Act, Parliament for the first time incorporated that policy comprehensively in legislation and set up the review and reporting process to support it.

Henry VIII is notorious not only for his wives but also for the Statute of Proclamations in 1539, by which Parliament gave him powers to legislate by proclamation.

The Statute was repealed on his death. But Parliament now controversially yet routinely confers powers on ministers to do much the same. When presented to Parliament in a Bill they are known as 'Henry VIII clauses' and enable primary legislation to be amended or repealed by ministers by order.

We should be concerned about the use of these clauses, particularly when the country's most senior judge, Lord Judge, said last year that they should be dumped as a "pernicious habit".

Yet here is such a clause being used again. This time it is to allow the government to take control of the process by which Ofcom currently reviews and reports every five years on the state of public service broadcasting in the UK. This involves amending or repealing parts of the Communications Act 2003. It would be done by ministerial Order, and a draft has been tabled in Parliament under the Public Bodies Act 2011. That is an Act which has nothing to do with broadcasting. It is designed to enable ministers to reduce the numbers and cost of quangos and to increase accountability by transferring responsibility for key decisions of public policy back to ministers.

Public service broadcasting in the UK is the result of some 90 years of deliberate and carefully considered policy. In the Communications Act, Parliament for the first time incorporated that policy comprehensively in legislation and set up the review and reporting process to support it. The legislation was enacted only after being subjected to the full force of Parliamentary scrutiny. Is it appropriate now to use Henry VIII-style powers to change it and to transfer key decisions to ministers?

The government says there is good reason for it. Officials say that the substantial resources involved in these reviews are better employed in other uses. The government has spoken of rolling back unnecessary red tape.

Others might take a different view. One of the central principles of the system of public service broadcasting established in the 1920s was and, with adaptations, remains that broadcasting authorities should be free of government intervention.

Using legislation designed to deal with quangos to amend broadcasting legislation so as to transfer decision-making powers to ministers is, to say the least, startling. Not only will Ofcom now conduct the review only as and when the minister calls for it, but the scope of the review will depend on what the minister may specify at the time. He or she may limit the review to a particular period (instead of the period since the last review), to a particular "purpose" (instead of the purposes generally), to fulfil particular criteria (instead of all of them) and even to a particular broadcaster (instead of public service broadcasters as a whole).

The draft Order would therefore put in the minister's hands a power selectively to limit what any review may cover. In unwise hands, it could serve to skew the direction of official policy on public service broadcasting in a direction which served a political agenda quite different from that which the Communications Act was designed to establish.

Parliament having arrived at a statutory framework for public service broadcasting, many would say it is for Parliament to decide to change it, especially where issues of principle may be involved, as they appear to be here.

Some have said that one might as well abolish Parliament if ministers are to have Henry VIII powers. In response to criticisms of this kind, there are some safeguards now in Henry VIII clauses, including the so-called super-affirmative procedure designed to facilitate Parliamentary rejection of objectionable ministerial orders, but they fall far short of the usual scrutiny to which primary legislation is subject in Parliament.

Maybe the fear that government may use these powers to undermine well-established principles of broadcasting that have served the country well for little short of a century is not well founded. But the question whether or not that is so will not get the airing in Parliament that it would have got if the amendment to the Communications Act had been proposed as a Bill. Henry VIII would have approved.